An answer alleging that the plaintiff’s claim is barred “by all applicable statutes of limitation in CCP 312- 366.3” waives the statute of limitations defense, and mentioning the statute of limitations in a trial brief does not resuscitate that defense. To preserve a statute of limitations defense, the answer must allege facts showing that the action is time-barred and showing that the defense of the statute of limitations is being raised, or by pleading the specific section and subdivision of the CCP which is applicable and bars the suit. Substantial evidence supported the trial court’s decision to award plaintiffs damages based on restoration costs even though they exceeded the diminution in market value of plaintiffs’ property as a result of defendant’s encroachment and destruction of 225 trees. Plaintiffs showed they had personal reasons for wishing to restore the property which they had used as a vacation retreat, valued for its privacy and natural state. Substantial evidence that defendant acted maliciously, destroying the trees knowing he was close to the property line and without warning plaintiffs, also supported the trial court’s award of treble damages for destruction of the trees under CC 3346 and CCP 733.
California Court of Appeal, First District, Division 1 (Dondero, J.); March 10, 2016 (partial publication); 2016 WL 736556